The Future of Equality After the Supreme Court 2012 Term: What's Left?

The Supreme Court's decisions this week have thrown the future of affirmative action into question and gutted the key provision of the Voting Rights Act. At the same time, the Court promised equal treatment to millions of gay couples throughout the nation. Together these cases mark staggering terrain shifts in the Civil Rights Movement. What these shifts portend for the future of social justice remains uncertain.

Friday June 28th at 12 PM eastern/ 9 AM pacific please join leading critical race scholars, journalists, and thought leaders for a national conference call to discuss the future of Civil Rights in light of this weeks' Supreme Court decisions. Our conversation will cover:

What really happened?

Is this a Game Changer or Door Closer?

If Marriage Equality is the Civil Rights issue of our time, is Racial Justice Yesterday's News?

Hosted by theAffirmative Action Research and Policy Consortium and in affiliation with the Critical Race Studies Program at UCLA School of Law and the Center for Intersectionality & Social Policy Studies at Columbia Law School.

AAPF Executive Director Kimberlé Crenshaw responds to this week's Supreme Court decisions, focusing on what they mean for the future of racial justice in the United States.

United States Supreme Court, Oct. 2012 Term

If Supreme Courts over time are arranged like boxes of chocolates, the Roberts Court defies the myth that you never know what you’re going to get. From the first bite into its discrimination decisions, the bitter nougat was always at odds with its enticing packaging. Nicely arranged as a Valentine to the aspirations of the martyrs and soldiers of the civil rights revolution, the only real surprise in the Roberts box of chocolates is the breathtaking boldness with which the Court has resurrected the segregationist dreams of a bygone era with the lifeblood of the very Movement that sought its root and branch elimination. In its stealthy but ruthless campaign, the Court has effectively liberated politicians, employers, and special interest groups from any meaningful constraints on their prerogatives toward historically racialized minorities. The double whammy is that at the same time, this Court has placed handcuffs on Universities, School Boards and democratic majorities who embrace the commitment to eliminating the barriers and obstacles to the full participation of America’s traditionally underrepresented minorities. Indeed, a look at the tape reveals that the Roberts Court has been more effective at keeping the segregationists’ vision alive than all the previous Courts have been able to do to ensure that it fades into history: it laid school desegregation to rest in 2008, it placed affirmative action on life support in Fisher, it twisted employment discrimination law into a barrier against the most effective ways to prove discrimination, and it has used the success of the VRA as an indictment against the very provisions that made it successful.

In Shelby, the Court provided a sobering window into the magical logic that permits the Court to project its sins onto those it is chastising. Chief Justice Roberts framed its criticism of the Voting Rights Act around the idea that the vision of history employed by Congress is static and without nuance—preaching that history was not frozen in place in 1965. The Court suggests that things have changed, dramatically so, and yet the problem with the Voting Rights Act is that it refuses to acknowledge that transformation. Yet the very feature of the VRA that made it so successful is precisely its recognition that discrimination is neither static nor limited to the past. The VRA’s central observation was that strategies to deny political participation for racial minorities are in no sense solely represented in any particular set of practices that prevailed in the past. Congress recognized that discriminatory practices are dynamic re-inventions of exclusionary traditions limited only by the imagination of those seeking to maintain political advantage. The wisdom of the VRA stands as precisely the opposite of what the Court claims.

Indeed, It is precisely this dimension of the VRA that contributed to its great success. Rather than preclude any specific set of practices, or presume that each covered state begins with an entirely clean slate, the VRA shifted the burden of proof to actors who seek to defend electoral changes. It compelled them to demonstrate that these changes had neither the intent nor the effect of discriminating against minority voters. This dynamic approach to discrimination addresses rules as mundane as those determining election hours and polling places, to those that embrace far more complex matters such as the delegation of authority and the drawing of district lines. It embodies a much richer understanding of the barriers confronted by minority voters than the static and ahistorical approach proffered by the Court.

The wisdom of the VRA is that it did not simply presume good faith on the part of officials in the face of policies that might negatively affect the participation of minority voters. Nor did it automatically invest purportedly race neutral measures with legal sanction or feign agnosticism about the possible reasons that minority participation might be undermined. As any close reading of the history of voting discrimination in this country reveals, efforts to circumvent the 15th amendment have been formally “race neutral’ since the earliest efforts to deploy grandfather clauses, poll taxes and constitutional interpretation requirements. Thus, Congress recognized that no list of prohibited practices would be expansive enough to guarantee the elusive right of political participation, and that new modes of discrimination are forged every day.

For this Court, however, mere progress signifies the end of the problem, and the beginning of reverse discrimination and stigma. In this scenario, the serious under-representation of people of color across the social plane does not mean that a state, employer or any other entity still has work to do. If anything, it means that the Court should remain on guard to guard against continuing efforts to transform the social terrain lest it result in the unfair burdening of those who are racially empowered.

The Court’s vigilance in returning the reigns of power to the racially empowered is all the more disconcerting given its own reluctance to impose robust responsibilities on institutions to eliminate all vestiges of discrimination. In school desegregation cases, for example, School boards can be released from any responsibility to continue efforts to maintain integrated schools not on the basis of achieving a full and complete dismantling of all vestiges of discrimination, but instead on a far less robust standard that requires only a showing that the conditions have been redressed “to the extent practicable.” The ” Roberts decision, unfortunately, imports this logic to the Voting Rights Act, and thus the signal achievement of the Civil Rights Movement is confined to the dustbin of history. The fact that hours after Shelby was handed down, practices that were deemed to be discriminatory under Section 5 were immediately renewed reveals that the Court has taken a side in a historical struggle that is anything but race neutral. That is a sweet victory to those who can now do what they want to minority voters, and a bitter game changer to all who believed that democracy might finally yield its long awaited promise.

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About the Case

The ACLU filed a class action complaint in federal court in NY in mid-October alleging that Morgan Stanley, one of the nation's largest holder of residential mortgages, targeted poor Black communities in Detroit in a scheme to originate high-cost and high-risk residential mortgage loans for profit.

Key to the ACLU's case is the allegation that Morgan Stanley's practices disporportionately impacted non-white borrowers and, as a result, subjected non-white borrowers to a greater risk of default and foreclosure.

What the ACLU is Seeking

The ACLU is seeking both special court protection of the plaintiff class in the form of an injuction to stop foreclosure actions as well as disgorgement of profits from Morgan Stanley that are linked to facilitation and participation in the mortgage scheme that disporportionately harmed African American borrowers in Detroit.

Executive Director Kimberle Crenshaw is a featured speaker at V-Day's One Billion Rising event in Los Angeles, California. Check out this sneak peek of Crenshaw's comments:

Why I am Rising!

I am rising today to end violence against women and girls around the globe for all those who cannot rise with us…

I’m rising for all of those women and girls who cannot rise, whose bodies make up those mind numbing statistics of those who did not survive;

I’m rising for the women and girls who cannot rise because they’ve been told that their bodies, their lives, their futures, their hurts, their hopes, and their sorrows are less important than the men and boys in their communities;

I’m rising for those who have been told that they must wait until the struggle against poverty, against racism, against homophobia, transphobia against world capitalism is all finished before the every day lives of women become important.

I’m rising for the women who are left behind when environmentalists negotiate with soldiers to save the gorillas and to spare the forests, but forget to mention the women and girls;

I’m rising to break the chains of the women for whom violence has locked down their futures, the 114,000 women in the US and the over 500,00 world wide who are incarcerated, literally chained up, most for whom prison has become a collateral consequence of the violence they have suffered;

I’m rising for the girls in juvenile detention, girls who have suffered physical, emotional, or sexual abuse before they reach 18, who make up 90% percent of the girls caught up in the juvenile justice system;

I’m rising for the homeless women and girls, the trafficked women and girls, the disabled women and girls, whose pathways to suffering were forged through violence and emotional abuse;

I’m rising for all the women who waited for family, friends, ministers, communities to stand with them, to protect them, to cherish them, and who are still waiting. I’m rising because at some point I too, waited…

I am rising because Rosa Parks rose.

Long before she sat down to protest segregation, she stood up to fight against the sexual abuse of Black women in Alabama in 1944. Rosa Parks understood something then that we all struggle to understand now— that the intersections of all of these “isms” means that a stand against one must be a stand against all; that to be truly liberated, the determination to break one chain must be extended to smash all of them.

I’m rising because if Rosa Parks and others like her around the world can rise up to fight lonely and dangerous battles, then we, a billion strong, can certainly do no less, here and now.

I am rising because I know that the voices of all of us can amplify the demands of individuals to be free. I am rising because when we realize that personal not only is political, but national, international, and global, our worlds can change.

Limited engagements with the nation’s preeminent speakers on race and gender equality.

Looking for the nation’s preeminent scholars and practitioners in the fields of gender and racial equity? AAPF’s network of scholars and practitioners is the perfect place to look for a topical or keynote speaker for your next college, university, business, or community-based organization event. Topics and issues our speakers frequently present on include, but are not limited to:

Our consultancy services offer expert analysis and assessment of both entrenched and new frictions within institutions and organizations stemming from divides with special emphasis upon race, gender, sex, sexual orientation, gender identity, socio-economic status, and disability. Our team of consultants is composed of leading social science and legal scholars as well as practitioners of varied backgrounds and experiences that help inform their external assessments, providing rich and unmatchable analysis and assessment.

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Intersectionality is a tool for analysis, advocacy and policy development that addresses multiple discriminations and helps us understand how different sets of identities impact on access to rights and opportunities.

A Primer on Intersectionality-Primer explains what intersectionality is, including its critical role in work for human rights and development, and suggests some different ways in which gender equality advocates can use it.